The words are familiar to anyone who’s watched a cop
show: “You have the right to remain silent . . .” But while the
Miranda warning was created to safeguard citizens from self-incrimination, there
are signs police have been intentionally disregarding it as part of a standard
investigative technique, says Alice Choi.

The criminal justice professor says this could become a common practice. Based
on Supreme Court decisions handed down over the summer, officers may be tempted
to tweak, or willfully violate, Miranda as a means for gathering evidence, Choi
says.

In one case, Missouri v. Seibert, the officer had intentionally withheld the
Miranda warning to help get a confession. “His technique was to get a
confession, then Mirandize the suspect and have the suspect repeat the confession.
The post-Miranda confession was then used against the suspect at trial,”
Choi says. Here, the court held the post-Miranda confession was obtained in
violation of Miranda and was inadmissible.

But if an inadmissible confession leads to other evidence, that evidence can
be used against the suspect at trial, the court determined. Choi notes that
in U.S. v. Patane, an ex-felon interrupted an ATF officer while he was attempting
to administer Miranda. The suspect then admitted he owned a firearm and revealed
where he kept it. The court found the firearm was admissible, she says.

“It’s a battle of individual constitutional rights versus effective
criminal investigations,” she says. “We have a system where we rely
on officers to do independent investigations to prove guilt. The next big question
is if they’re allowed to find evidence through ill-gotten confessions,
to what extent does that erode the Fifth Amendment?”

While some may say this is just good policing, Choi says, it verges on violating
what Chief Justice Warren saw as Miranda’s important role in protecting
citizens’ rights.